Citation Nr: 0916482
Decision Date: 05/04/09 Archive Date: 05/12/09
DOCKET NO. 06-16 306 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an initial compensable evaluation for
service-connected low back disability.
2. Entitlement to an initial compensable evaluation for
service-connected benign essential tremor of the right
(major) hand.
3. Entitlement to an initial compensable evaluation for
service-connected benign essential tremor of the left hand.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Carole R. Kammel, Counsel
INTRODUCTION
The Veteran served in the United States Army from July to
November 1980, and in the United States Navy from March 1984
to January 2005.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana. By that rating action, the RO, in
part, granted service connection for a low back disability
and benign essential tremors of the right and left hands;
initial noncompensable evaluations were assigned, effective
February 1, 2005--the date following the Veteran's release
from active service. The Veteran timely appealed the RO's
April 2005 rating action to the Board, and this appeal
ensued. Jurisdiction of the claims file currently resides
with the RO in Waco, Texas.
In January 2009, the Veteran testified before the undersigned
Veterans Law Judge at the Waco, Texas RO. A copy of the
hearing transcript has been associated with the claims file.
FINDINGS OF FACT
1. For the period from February 1, 2005 to April 2, 2007,
the service connected low back disability was manifested by
forward flexion to 90 degrees, and backward extension,
bilateral rotation, and bilateral flexion each to 30 degrees;
there was no evidence of muscle spasms, guarding or localized
tenderness of the lumbar spine.
2. Beginning April 3, 2007, the evidence shows that the
service-connected low back disability was manifested by
localized tenderness in the lower lumbar paraspinous area;
forward flexion of the thoracolumbar spine greater than 30
degrees but not greater than 60 degrees, combined range of
thoracolumbar motion not greater than 120 degrees with muscle
spasm and guarding resulting in an abnormal gait or spinal
contour, or incapacitating episodes due to intervertebral
disc disease have not been demonstrated.
3. The Veteran is right-hand dominant.
4. Since February 1, 2005, manifestations of the Veteran's
benign essential tremor as it affects his left (minor) and
right hands include difficulty with fine motor skills; mild
incomplete paralysis of the median nerve has not been
demonstrated in either hand.
CONCLUSIONS OF LAW
1. For the period from February 1, 2005 to April 2, 2007,
the criteria for an assignment of an initial compensable
rating for the service-connected low back disability
beginning have not been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10,
4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5235-
5243 (2008).
2. The criteria for an assignment of an initial 10 percent
rating, but no higher, for the service-connected low back
disability beginning April 3, 2007 have been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§
4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic
Codes (DCs) 5003, 5235-5243 (2008).
3 Since February 1, 2005, the criteria for an initial
compensable evaluation for the service-connected benign
essential tremor of the left (minor) hand have not been met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§ 4.124a, DCs 8004, 8515 (2008).
4. Since February 1, 2005, the criteria for an initial
compensable evaluation for the service-connected benign
essential tremor of the right (major) hand have not been met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§ 4.124a, DCs 8004, 8515 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Board has considered the Veterans Claims Assistance Act
of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 and Supp. 2007). The regulations
implementing VCAA have been enacted.
See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008).
VA has a duty to notify the claimant of any information and
evidence needed to substantiate and complete a claim. 38
U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16
Vet. App. 183 (2002).
After having carefully reviewed the record on appeal, the
Board has concluded that the notice requirements of VCAA have
been satisfied.
The notice and assistance provisions of VCAA should be
provided to a claimant prior to any adjudication of the
claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In
this case, notice to the Veteran was sent via a January 2005
pre-adjudication letter. In accordance with the requirements
of VCAA, the letter informed the Veteran what evidence and
information he was responsible for obtaining and the evidence
that was considered VA's responsibility to obtain.
Specifically, the Veteran was advised in that letter that VA
would obtain all evidence kept by the VA and any other
Federal agency, including VA facilities and service treatment
records. He was also informed that VA would, on his behalf,
make reasonable efforts to obtain relevant private medical
records that he identified.
In compliance with the duty to notify the Veteran of what
information would substantiate his claim, the Veteran was
informed in an August 2008 letter about disability ratings
and effective dates. See Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006).
Because this case involves an initial rating(s), as opposed
to an increased rating(s), the requirements of Vazquez-Flores
v. Peake, 22 Vet. App. 37 (2008) are not applicable.
Notwithstanding the foregoing, by an August 2008 letter, the
RO informed the Veteran of the Vazquez-Flores v. Peake
requirements.
VA has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. VCAA also requires VA to
provide a medical examination when such an examination is
necessary to make a decision on the claim. 38 U.S.C.A. §
5103A(d); 38 C.F.R. § 3.159. There are relevant VA and
private records on file, including reports of VA examinations
conducted throughout the duration of the appeal. Copies of
these reports have been associated with the claims file. In
addition, in January 2009, the Veteran gave testimony before
the undersigned at the RO in Waco, Texas.
The Board concludes that all available evidence has been
obtained and that there is sufficient medical evidence on
file on which to make a decision on the initial evaluation
issues decided herein.
The Veteran has been given ample opportunity to present
evidence and argument in support of his initial evaluation
claims. In fact, on a VCAA Notice Response Form, dated and
signed by the Veteran in April 2007, he specifically
indicated that he did not have any additional evidence to
submit in support of his current appeal. The Board
additionally finds that general due process considerations
have been complied with by VA, and the Veteran has had a
meaningful opportunity to participate in the development of
the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005),
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38
C.F.R. § 3.103 (2008).
In this case, however, as there is no evidence that any
failure on the part of VA to further comply with VCAA
reasonably affects the outcome of this case, the Board finds
that any such omission is harmless. See Mayfield and
Dingess, both supra.
The Board finds that this matter is ready for appellate
review.
II. Merits Analysis
Disability evaluations are determined by evaluating the
extent to which a Veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Rating Disabilities (Rating Schedule). 38
U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation; otherwise, the lower evaluation will be assigned.
38 C.F.R. § 4.7.
In view of the number of atypical instances it is not
expected, especially with the more fully described grades of
disabilities, that all cases will show all the findings
specified. Findings sufficiently characteristic to identify
the disease and the disability therefrom, and above all,
coordination of rating with impairment of function will,
however, be expected in all instances. 38 C.F.R. § 4.21.
In evaluating a disability, the Board considers the current
examination reports in light of the whole recorded history to
ensure that the current rating accurately reflects the
severity of the condition. The Board has a duty to
acknowledge and consider all regulations that are potentially
applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
The medical as well as industrial history is to be
considered, and a full description of the effects of the
disability upon ordinary activity is also required. 38
C.F.R. §§ 4.1, 4.2, 4.10.
In Fenderson v. West, 12 Vet. App. 119 (1999), it was held
that evidence to be considered in the appeal of an initial
assignment of a disability rating, as in the case at bar, was
not limited to that reflecting the then current severity of
the disorder. In Fenderson, the United States Court of
Appeals for Veterans Claims (Court) also discussed the
concept of the "staging" of ratings, finding that, in cases
where an initially assigned disability evaluation has been
disagreed with, such as the case here, it was possible for a
Veteran to be awarded separate percentage evaluations for
separate periods based on the facts found during the initial
evaluation period. Id.
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Low Back Disability
By an April 2005 action, the RO, in part, granted service
connection for a low back disability; an initial
noncompensable rating was assigned under Diagnostic Code (DC)
5003, effective February 1, 2005-the date following the
Veteran's release from active service.
The Veteran's service connected low back disability, has been
rated under DC 5003. Under DC 5003, degenerative arthritis
established by x-ray findings will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved. In the absence of
limitation of motion, a 20 percent disability rating is
warranted with X-ray evidence of involvement of two or more
major joints or two or more minor joint groups, with
occasional incapacitating exacerbations, and a 10 percent
disability rating is warranted with x- ray evidence of
involvement of two or more major joints or two or more minor
joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003.
Under DC 5242, a 10 percent evaluation is warranted for
forward flexion of the thoracolumbar spine greater than 60
degrees but not greater than 85 degrees; or, combined range
of motion of the thoracolumbar spine greater than 120 degrees
but not greater than 235 degrees; or, muscle spasm, guarding,
or localized tenderness not resulting in an abnormal gait or
abnormal spinal contour; or a vertebral body fracture with
loss of 50 percent or more of the height. See 38 C.F.R. §
4.71a, DC 5242.
A 20 percent evaluation is warranted for forward flexion of
the thoracolumbar spine greater than 30 degrees but not
greater than 60 degrees; or, a combined range of motion of
the thoracolumbar spine not greater than 120 degrees; or,
muscle spasm or guarding severe enough to result in an
abnormal gait or abnormal spinal contour such as scoliosis,
reversed lordosis, or abnormal kyphosis. Id.
A 40 percent evaluation is in order for forward flexion of
the thoracolumbar spine of 30 degrees or less; or, favorable
ankylosis of the entire thoracolumbar spine. A 50 percent
evaluation is warranted for unfavorable ankylosis of the
entire thoracolumbar spine, while a 100 percent evaluation
contemplates unfavorable ankylosis of the entire spine. Id.
For VA compensation purposes, normal forward flexion of the
thoracolumbar spine is zero to 90 degrees, extension is zero
to 30 degrees, left and right lateral flexion are zero to 30
degrees, and left and right lateral rotation are zero to 30
degrees. The combined range of motion refers to the sum of
the range of forward flexion, extension, left and right
lateral flexion, and left and right rotation. The normal
ranges of motion for each component of spinal motion provided
in this note are the maximum that can be used for calculation
of the combined range of motion. 38 C.F.R. § 4.71a, DCs 5235
to 5242.
After a review of the evidence of record, the Board finds
that prior to April 3, 2007, the Veteran had essentially
normal range thoracolumbar spine motion with no evidence of
muscle spasms, guarding or localized tenderness. When VA
evaluated the Veteran in April 2005, lumbar spine flexion was
to 90 degrees and backward extension, bilateral rotation and
bilateral flexion were each to 30 degrees. This same
examination reports also shows that the Veteran's combined
range of motion of the thoracolumbar spine was to 240
degrees. Thus, for the period prior to April 3, 2007, the
Veteran's range of thoracolumbar motion was not limited to
the degree that would merit an initial 10 percent evaluation
under DCs 5235 to 5242. There was also no evidence of any
muscle spasm, guarding or localized tenderness of the lumbar
spine. (See, April 2005 VA examination report). Overall,
the preponderance of the evidence is against an initial
compensable evaluation for the service-connected lumbar spine
disability for the period from February 1, 2005 to April 3,
2007. See, 38 C.F.R. § 4.71a, DCs 5235 to 5242.
The evidence shows a demonstrable worsening of the disorder
on April 3, 2007, the date of a VA spine examination report
containing evidence of localized tenderness in the lower
lumbar paraspinous muscle area - criteria that supports an
assignment of an initial 10 percent rating. See, 38 C.F.R.
§ 4,71a, DCs 5232 to 5242. A rating in excess of 10 percent
for the period from April 3, 2007 is not warranted because
there is no evidence of forward flexion of the thoracolumbar
spine greater than 30 degrees but not greater than 60
degrees, combined range of thoracolumbar motion not greater
than 120 degrees with muscle spasm and guarding resulting in
an abnormal gait or spinal contour, such as scoliosis,
reversed lordosis, or abnormal kyphosis. An April 2007 VA
examination report showed that the Veteran had forward
flexion of the lumbar spine to 90 degrees and backward
extension, bilateral flexion and bilateral rotation were each
to 30 degrees.
An assignment of a separate rating due to neurological
impairment is also not warranted. The medical evidence in
this regard is negative. (See, April 2005 and April 2007 VA
examination reports, which are devoid of any evidence of any
neurological impairment of the lower extremities).
The Board also notes that throughout the entire appeal
period, the medical evidence was wholly devoid of any
clinical findings of intervertebral disc syndrome that, at a
minimum, equate to incapacitating episodes having a total
duration of at least two weeks but less than four weeks
during a twelve-month period. See 38 C.F.R. § 4.71a,
Diagnostic Code 5243. For purposes of evaluations under
5243, an incapacitating episode is a period of acute signs
and symptoms due to intervertebral disc syndrome that
requires bed rest prescribed by a physician and treatment by
a physician. Id. at Note (1). No such medical
recommendations are of record. Indeed, an April 2007 VA
spine examination report reflects that the Veteran
specifically denied having any incapacitating episodes within
the last 12 months. (See, April 2007 VA spine examination
report). Therefore, a higher rating is not warranted for
service-connected low back disability at anytime during the
appeal period based on application of intervertebral disc
syndrome. See 38 C.F.R. § 4.71a, Diagnostic Code 5243.
The above evidence reveals that prior to April 3, 2007, the
Veteran had essentially normal range of motion of the
thoracolumbar spine with no evidence of muscle spasms,
guarding or localized tenderness. However, a VA examination
report, dated April 3, 2007, contained evidence of localized
tenderness in the lower lumbar paraspinous muscle area,
criteria which supports an assignment of an initial 10
percent rating, but no higher, for the service-connected low
back disability under DCs 5235 to 5242. 38 C.F.R. § 4,71a,
DCs 5232 to 5242.
Therefore, based on the applicable rating criteria, an
initial evaluation of 10 percent is warranted beginning on
April 3, 2007. See Fenderson, supra. A rating in excess of
10 percent for the period from April 3, 2007 is not warranted
because there is no evidence of forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees, combined range of thoracolumbar motion not
greater than 120 degrees with muscle spasm and guarding
resulting in an abnormal gait or spinal contour, or
incapacitating episodes due to intervertebral disc disease.
In addition, as the April 2005 and April 2007 VA examination
reports are wholly devoid of any evidence of radiculopathy of
the lower extremities due to the Veteran's service-connected
low back disability, a separate rating for the neurologic
manifestations of the Veteran's low back disability is also
not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5242
Note (1) (2008).
Because there is no additional loss of joint function on
repetitive motion of the low back due to pain, fatigue, or
lack of coordination, a higher initial rating is also not
warranted for the service-connected low back disability at
anytime during the appeal period pursuant to the provisions
of 38 C.F.R. §§ 4.40, 4.45 (2008). See also Deluca v. Brown,
8 Vet. App. 202 (1995). During an April 2005 VA examination,
the Veteran denied having any problems with gait or walking
as a result of his service-connected low back disability.
Although the Veteran complained of low back pain, especially
on extreme ranges of lumbar spine motion during an April 2007
VA examination, he denied having any flare-ups of the lumbar
spine. That same examination report also shows that there
was no evidence of flare-ups, inccordination, fatigue,
weakness, or lack of endurance of the lumbar spine. (See,
April 2007 VA spine examination report). Therefore, a higher
initial rating for the service-connected low back disability
is also not warranted based on application of 38 C.F.R. §§
4.40, 4.45, and DeLuca.
Right and Left Hand Tremors
By an April 2005 action, the RO, in part, granted service
connection for benign essential tremors of the right and left
hands; initial noncompensable ratings were assigned,
effective February 1, 2005-the date following the Veteran's
release from active service.
The Veteran's service-connected benign essential tremors of
the right and left hands are rated by analogy under 38 C.F.R.
§ 4.124a, Diagnostic Code 8004. Under that DC, a minimum 30
percent disability rating for paralysis agitans, otherwise
known as Parkinson's disease, will be assigned. See
38 C.F.R. § 4.124a, Diagnostic Code 8004 (2008).
Evaluations of neurological conditions and their residuals
may be rated from 10 to 100 percent in proportion to the
impairment of motor, sensory, or mental function. Psychotic
manifestations, complete or partial loss of use of one or
more extremities, speech disturbances, impairment of vision,
disturbances of gait, tremors, visceral manifestations, etc.,
are to be considered. With partial loss of use of one or more
extremities from neurological lesions, diseases and residuals
are rated by comparison with the mild, moderate, severe, or
complete paralysis of peripheral nerves. 38 C.F.R. § 4.124a.
In evaluating the service-connected benign essential tremors
of the right and left hands, the Board has considered 38
C.F.R. § 4.124a, Diagnostic Code 8515, the DC used to
evaluated paralysis of the median nerve. Under DC 8515, a
minimum 10 percent evaluation is warranted for mild
incomplete paralysis of the minor or major extremity. A 20
percent evaluation is warranted for moderate incomplete
paralysis of the minor extremity, and a 30 percent rating is
warranted for moderate incomplete paralysis of the median
nerve in the major extremity. A 40 percent rating requires
severe incomplete paralysis of the median nerve in the minor
extremity, and a 50 percent rating is warranted for severe
incomplete paralysis of the median nerve in the major
extremity. 38 C.F.R. § 4.124a, DC 8515. Diagnostic Codes
8615 and 8715 address the criteria for evaluating neuritis
and neuralgia of the median nerve, respectively. The
criteria are consistent with the criteria for evaluating
degrees of paralysis as set forth above. 38 C.F.R. § 4.124a,
DC's 8515, 8615, 8715 (2005).
A note in the Rating Schedule pertaining to "Diseases of the
Peripheral Nerves" provides that the term "incomplete
paralysis" indicates a degree of lost or impaired function
which is substantially less than that which results from
complete paralysis of these nerve groups, whether the loss is
due to the varied level of the nerve lesion or to partial
nerve regeneration. When the involvement is wholly sensory,
the rating should be for the mild, or at most, the moderate
degree. 38 C.F.R. § 4.124a, DC's 8510 through 8540 (2008).
It is noted that the Veteran is right-handed. (See April
2005 VA orthopedic examination report).
The words "slight," "moderate" and "severe" as used in the
various diagnostic codes are not defined in the VA Schedule
for Rating Disabilities. Rather than applying a mechanical
formula, the Board must evaluate all of the evidence, to the
end that its decisions are "equitable and just." 38 C.F.R. §
4.6 (2008). It should also be noted that use of terminology
such as "severe" by VA examiners and others, although an
element of evidence to be considered by the Board, is not
dispositive of an issue. All evidence must be evaluated in
arriving at a decision regarding an increased rating. 38
C.F.R. §§ 4.2, 4.6 (2008).
The evidence of record does not support mild incomplete
paralysis such that initial compensable evaluations are
warranted for the service-connected right or left hand
tremors under DC 8515. While the Veteran complained of
having difficulty with typing and performing fine motor
skills as a result of his service-connected right and left
hand tremors, VA examinations of the upper extremities,
conducted in April 2005 and April 2007, uniformly disclosed
5/5 motor strength.
There was also no evidence of motor impairment or muscle
atrophy. Sensation was normal to Weinstein monofilament and
"sharp/dull" (April 2007). The Veteran specifically denied
having any paresthesias and dysthesisas of the hands. (April
2007).
The evidence does not show that the Veteran's service-
connected benign essential tremors of the right and left
hands have been manifested by symptomatology that more nearly
approximates the criteria for initial noncompensable
evaluations under DC 8515, and that the preponderance of the
evidence is against initial compensable evaluations at
anytime since the award of service connection, February 1,
2005.
The evidence does not also demonstrate that the service-
connected tremors of the right and left hands are equivalent
to severe incomplete neuritis, or neuralgia, such that higher
evaluations are warranted under DC's 8615 or 8715.
Specifically, given the aforementioned VA medical evidence,
to include the findings (or lack thereof) as to strength and
sensation of the upper extremities, the Board finds that it
is not shown that the service-connected tremors of the right
and left hands have been manifested by severe incomplete
neuritis, or neuralgia of the median nerve, as contemplated
by these diagnostic codes. Accordingly, the criteria for
initial compensable evaluations for the service-connected
benign essential tremors of the right and left hands have not
been met under DC's 8615 or DC 8715.
Similarly, while the Veteran described having difficulty
typing and performing fine motor skills of the hands, he does
not contend, nor does the medical evidence show, that he has
lost the use or effective functioning of either hand. Thus,
the service-connected tremors of the right and left hands do
not approximate disabilities based on amputation of the
finger or hand, or loss of use of either hand. See, e.g., 38
C.F.R. §§ 4.63, 4.71a, Diagnostic Codes 5125, 5155 (2008).
The preponderance of the evidence is against the Veteran's
claims for initial compensable evaluations for his service-
connected benign essential tremors of the right and left
hands.
III. Extraschedular Consideration
Finally, there is no evidence of any unusual or exceptional
circumstances, such as marked interference with employment or
frequent periods of hospitalization related to the service-
connected disabilities on appeal that would take the
Veteran's case outside the norm so as to warrant any
extraschedular rating.
While an April 2007 VA peripheral nerve examination report
reflects that the Veteran was employed as a medical
supervisor and that he had some difficulty typing and
performing fine motor skills, there is no evidence that he
had lost time from work as a result of the service-connected
disabilities on appeal. On the contrary, an April 2007 VA
spine examination report shows that the Veteran specifically
denied having lost anytime from his job as a result of his
service-connected low back disability. Thus, marked
interference with employment due to the service-connected
disabilities on appeal has not been demonstrated. In
addition, the degree of severity caused by the service-
connected low back disability and benign essential tremors of
the right and left hands are adequately represented by the
initial ratings assigned herein; marked interference with
employment due to these service-connected disabilities alone
has not been shown. Consequently, referral by the RO to the
Chief Benefits Director of VA's Compensation and Pension
Service, under 38 C.F.R. § 3.321, is not warranted. See
Bagwell v. Brown, 9 Vet. App. 337 (1996).
(CONTINUED ON NEXT PAGE)
ORDER
An initial compensable rating for the service- connected low
back disorder for the period from February 1, 2005 to April
2, 2007 is denied.
An initial rating of 10 percent for the service-connected low
back disorder beginning April 3, 2007 is granted subject to
the controlling regulations applicable to the payment of
monetary benefits.
An initial compensable evaluation for benign essential tremor
of the right hand is denied.
An initial compensable evaluation for benign essential tremor
of the left hand is denied.
____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs